October 3, 1999
It’s too bad Chief Justice Antonio Lamer had to wait till he retired to tell us how he really felt. This staunch defender of Charter rights told the National Post that in 1982 he was very concerned about the Charter and the powers it conferred upon the judiciary.
“Nobody really had a thorough debate about the effects the Charter would have on the whole balance between the elected and the non-elected,” he said. In other words, justices weren’t prepared to become lawmakers.
Lamer said he wouldn’t second-guess the Parliament of the day for doing what it did, but you have to wonder how much stupidity and how many lawyers’ bills could have been avoided if a proper debate had been held. As it is the Charter is a seething mass of contradictions that has plagued this country like an itch that gets worse every time some individual or interest group scratches it.
For example, Section 15 (1) states that every individual is equal under and before the law and has an equal right to its benefits and protection, without discrimination based on race, sex, religion, etc. Section 15 (2) states the opposite. It sanctions any law, program or activity that ameliorates the conditions of disadvantaged individuals or groups without discrimination based on race, sex, religion, etc. In one breath we are all equal; in the next we are not.
As a result is that the Supreme Court ended up sanctifying the cult of identity politics, and in 1992 became the first one in the world to accept the radical feminist notion of “hostile climate.” In Richard Gwyn’s book, Nationalism Without Walls: The Unbearable Lightness of Being Canadian, Lamer says that Section 15 is designed “to remedy or prevent discrimination against groups subject to stereotyping.”
Since a statement of rights is necessarily general and abstract, a proper debate would have found Section 15 (2) to be nonsense. Any adjustments to the application of subsection (1) is within the purview of Parliament, and any program it passes could be said to help fulfill its terms.
Thus, instead of a clear definition of rights we have an enshrined double standard, which is revolting.
Native rights is another disaster area. Sections 25 and 35 guarantee Native rights, treaties and freedoms as well as any future freedoms that may be acquired by way of land claims. Yet these rights can run afoul of Sections 31 and 52. The Nisga’a Agreement, for example, permits the creation of a third order of government in B.C., yet Section 31 says that nothing in the Charter extends the legislative powers of any body or authority.
As for Section 52, it affirms that the Constitution is supreme in law, and that anything that contradicts it is null and void—a virtuous but idle claim.
How did the Charter become such a mess? Vancouver– Quadra MP Ted McWhinney knows—he helped write it. Together with B.C. Sen. Ray Perreault he was responsible for the inclusion of Sections 25 and 35.
To use a publishing metaphor, the Charter of Rights was rushed into print. “People are assuming a more rational approach to drafting the Charter than actually occurred,” said McWhinney. “It was a fairly lazy, cut-and-paste work that drew on other documents.” Three of these documents are the United Nations Declaration of Human Rights, the 1951 Geneva Convention on Refugees and France’s Declaration of the Rights of Man.
As a result, the Charter is less a statement of Canadian democracy than it is a pastiche of beliefs cobbled together from other bodies. “Some of us warned [Prime Minister] Pierre Trudeau that the Charter would change the constitutional nature of Canada. I don’t think he fully understood that,” said McWhinney.
A newly discovered area of uncharted rights has turned up because of the influx of Fujianese boat people. As proof that the Fujianese are legally entitled to Charter protection, their advocates cite the specific language in Section 15 (1). It applies to “every individual” as opposed to “every citizen,” which is the case in some other sections.
However, while one could try to argue that Section 15 (1) applies to illegal refugees, it is also possible that “every individual” means anyone who is legally entitled to be in Canada—citizens, landed immigrants, immigrants awaiting citizenship and visitors.
“There’s only the flimsiest jurisprudence regarding what the Charter says to this, [and nothing] to require people to appear in person or require labyrinthine appeals,” he said. “It would be nothing to rewrite the law.”
But there’s little chance of that happening. McWhinney said too many immigration lawyers are happy with the current wasteful Byzantine structure, and there’s no political will to do anything about it.
He said the solution to the boat-people influx lies in establishing a Canadian office in Fujian, so that these illegal immigrants can apply to come here legally. That might not be difficult because, as McWhinney said, Canada’s refugee quota was undersubscribed by 50,000 last year.
As it stands, the Charter is open to arbitrary interpretation by groups who read into it what they want to see. Thus, it has become a force for division, not unity.
You’d think that a document as important as the Charter would have been written soberly and deliberately. Too bad nobody thought to ask the Supreme Court justices what they thought of it.